Clem on Torts: Chapter 9: Misrepresentation

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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There are four elements to the tort of misrepresentation:

  1. A misrepresentation.
  2. The misrepresentation was intended to induce the plaintiff’s reliance.
  3. The misrepresentation actually induced the plaintiff’s reliance.
  4. The plaintiff suffered damages as a result.

The first element is that there must be a misrepresentation. This is defined as an inaccurate affirmation of a material fact. The misrepresentation can be either verbal or nonverbal. It may be implied, and there might even be some situations where silence could constitute a misrepresentation.

In most jurisdictions, the misrepresentation must be intentional. In other words, the defendant must have known that the statement was false, and uttered it intentionally. In a few jurisdictions, however, a negligent misrepresentation is actionable.

The second element is that the defendant intended to induce the plaintiff’s reliance. For this element, intent is required, even in those jurisdictions where the misrepresentation itself was negligent.

Third, the plaintiff must have actually relied upon the defendant’s misrepresentation.

Finally, the plaintiff must prove actual damages. For commercial losses, most jurisdictions follow the “benefit of the bargain” rule from the law of contracts. However, some jurisdictions limit damages to the plaintiff’s actual out-of-pocket loss.

Clem on Torts is also available at Amazon as a Kindle book.

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